Paid into court
adj. referring to money deposited with the clerk of the court by a person or entity who knows that the money is owed but does not know to whom they should pay it until the outcome of a lawsuit between two other parties is decided. In short, the party handing over the money is saying: “Here is the money. You two argue over it, but spare me the trouble and cost of the suit.” Example: A contractor buys supplies from a hardware store on credit. The store is owned by two people who have dissolved their partnership and are fighting over who owns accounts receivable, including the funds owed by the contractor. The contractor knows he owes the money for his supplies, wants to meet his obligations, and wants to get rid of the debt. So the contractor gives what he thinks he owes the hardware store to the court to hold while the two former partners settle their differences.
Pain and suffering
The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured plaintiff can seek compensation in the form of cold, hard cash. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work — although sometimes these are factored in to arrive at a logical figure.
A non-legal term coined by journalists to describe the division of property or alimony-like support given by one member of an unmarried couple to the other after they break up.
n. the list of people selected to appear for jury duty.
n. 1) an equal level. 2) the face value of a stock or bond, printed on the certificate, which is the amount the original purchaser paid the issuing corporation. However, most common stocks are issued as “no-par value,” and the value reflects the current market for the stock. Preferred stocks state a par value upon which the dividends are calculated, and the par value of bonds establishes the final pay-off amount upon maturity, usually many years in the future.
The face value of a stock, assigned by a corporation at the time the stock is issued. The par value is often printed on the stock certificate, but the market value of the stock may be much more or much less than par.
A person who does legal work but who is not licensed to practice law or dispense legal advice. Independent paralegals (those who work directly with the public, not for lawyers) assist their customers by providing forms, helping people fill them out correctly and filing them with the proper court.
n. a right to real property which prevails over any other person’s claim of title.
1) n. a defined piece of real estate, usually resulting from the division of a large area of land. It can range in size from a small lot to a gigantic ranch. 2) a package.
1) v. to use the executive power of a Governor or President to forgive a person convicted of a crime, thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime for which the pardon was given. A pardon strikes the conviction from the books as if it had never occurred, and the convicted person is treated as innocent. Sometimes pardons are given to an older rehabilitated person long after the sentence has been served to clear his/her record. However, a pardon can also terminate a sentence and free a prisoner when the chief executive is convinced there is doubt about the guilt or fairness of the trial, the party is rehabilitated and has performed worthy public service, or there are humanitarian rea-sons such as terminal illness. The most famous American pardon was the blanket pardon given by President Gerald Ford to ex-President Richard Nixon in the wake of the Watergate scandal and Nixon’s resignation; that pardon closed the door to any future prosecu- tion against Nixon for any crime before the pardon. A pardon is distinguished from “a commutation of sentence” which cuts short the term; “a reprieve,” which is a temporary halt to punishment, particularly the death penalty, pend- ing appeal or determination of whether the penalty should be reduced; “amnesty,” which is a blanket “forgetting” of possible criminal charges due to a change in public circumstances (such as the end of a war or the draft system); or a “reduction in sentence,” which shortens a sentence and can be granted by a judge or an executive.
Latin for “father of his country,” the term for the doctrine that the government is the ultimate guardian of all people under a disability, especially children, whose care is only “entrusted” to their parents. Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is 18 years old, and a judge may change custody, child support or other rulings affecting the child’s well-being, no matter what the parents may have agreed or the court previously decided.
n. the lawful and natural father or mother of a person. The word does not mean grandparent or ancestor, but can include an adoptive parent as a replacement for a natural parent.
n. a crime consisting of acts or omissions of a parent (including a stepparent, adoptive parent or someone who, in practical terms, serves in a parent’s role) which endangers the health and life of a child or fails to take steps necessary to the proper raising of a child. The neglect can include leaving a child alone when he or she needs protection; failure to provide food, clothing, medical attention or education to a child; or placing the child in dangerous or harmful circumstances, including exposing the child to a violent, abusive or sexually predatory person.
Latin, equal fault.
n. 1) a geographic area served by a church (particularly Catholic) originally measured by whether people living in the area could walk to the church. 2) in Louisiana, the governmental equivalent of a county.
n. the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning. Parodies have been challenged as copyright infringements on the original works, particularly since some have reaped terrific profits. Recent decisions favor the parodies and say they have an originality of their own and, thus, are not infringements. There is a free speech issue involved in these decisions since parodies traditionally have social and political significance.
Parol evidence rule
n. if there is evidence in writing (such as a signed contract) the terms of the contract cannot be altered by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.
n. 1) the release of a convicted criminal defendant after he/she has completed part of his/her prison sentence, based on the concept that during the period of parole, the released criminal can prove he/she is rehabilitated and can “make good” in society. A parole generally has a specific period and terms such as reporting to a parole officer, not associating with other ex-convicts, and staying out of trouble. Violation of the terms may result in revocation of parole and a return to prison to complete his/her sentence. 2) a promise by a prisoner of war that if released he will not take up arms again.
adj. not complete or entire.
n. the failure to meet a term of a contract which is so minimal that it does not cause the contract to fail or justify breach (breaking the contract) by the other contracting party. A partial breach can be remedied (made up) by a small reduction in payment or other adjustment. Example: a landlord promises to rent an apartment furnished, and when the tenants move in some furnishings are not there. The landlord may lower the rent temporarily until he/she can bring in the missing or expected items.
n. the result of an injury which permanently reduces a person’s ability to function, but still permits some working or other activity. In worker’s compensation cases an injured worker is often awarded a percentage rating of permanent partial disability, which will entitle him/her to a money settlement. The percentage payoff is often based on a physician’s evaluation of what part of the person’s normal functioning is gone.
n. in a criminal trial, the result when the jury finds the defendant guilty of one or more charges but not guilty (or deadlocks) on one or more other charges.
v. to invest and then receive a part or share, as in business profits, payments on a promissory note, title to land, or as one of the beneficiaries of the estate of a person who has died.
n. a lawsuit which one co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other’s half. Partition cases are common when co-owners differ on whether to sell, keep or divide the property.
n. 1) one of the co-owners and investors in a “partnership” which is an on-going business enterprise entered into for profit. A “general partner” is responsible for the debts, contracts and actions of all the partners in the business, is an equal in management decisions unless there is an agreement establishing management duties and rights, and shares in the profits and losses based on the percentage of the investment (either in money or effort) in the partnership. A “limited partner” does not share responsibility for debts beyond his/her investment, cannot share in management, and shares in profits based on a written agreement. A “silent partner” is no different from any partner except he/she is not visible to the public and has no part in day-to-day management. 2) slang for “domestic partner,” usually two people living together, either homosexual or heterosexual, sharing lives and possessions, and not married.
When used without a qualifier such as “limited” or “limited liability,” usually refers to a legal structure called a general partnership. This is a business owned by two or more people (called partners or general partners) who are personally liable for all business debts. To form a partnership, each partner normally contributes money, valuable property or labor in exchange for a partnership share, which reflects the amount contributed. Partnerships are easy to form since no registration is required with any governmental agency to create a partnership (although tax registration and other requirements to conduct business may still apply). Although not required, it is an excellent idea to prepare a written partnership agreement between the partners to define items such as ownership percentages, how profits and losses will be divided and what happens if a partner dies or becomes disabled. Partnerships themselves do not pay federal or state income taxes; rather, profits are passed through to partners who report and pay income taxes on their personal returns. A business organization in which two or more persons carry on a business together.
A person, corporation or other legal entity that files a lawsuit (the plaintiff or petitioner) or defends against one (the defendant or respondent).
Party of the first part
n. reference in a written contract to identify one of the people entering into the agreement. The agreement would read “Mary McConnell (hereinafter called The Party of the First Part).” Better practice is to identify the parties by a short form of their name (“hereinafter referred to as McConnell”) or as Buyer, Seller, Owner, Trustee or some other useful identification. Name use aids in following and understanding the contract and avoids confusion with “the party of the second part,” which identifies another party to the agreement.
Party of the second part
n. a reference to a party to a written contract, as distinguished from “the party of the first part.”
n. a wall shared by two adjoining premises which is on the property line, such as in townhouses, condominiums, row houses or two units in a duplex. Both owners are responsible for maintaining structural integrity of the wall, even if the wall is entirely on the property of one of the parties.
n. a rider who has paid a fare on a train, bus, airline, taxi, ship, ferry, automobile or other carrier in the business of transporting people for a fee (a common carrier). A passenger is owed a duty of care by such a carrier and has a right to sue for damages for injuries suffered while being transported without proof of negligence. One tricky issue is whether a person who has entered the depot, station or airport, but not yet purchased a ticket or has not boarded, is entitled to the rights of a passenger to recover for damages. A passenger without payment of fare who is injured must prove the driver’s negligence in a suit for damages.
adj. referring to being inactive. A “passive trustee” is one who has no responsibilities other than to hold title or wait for an event which would activate the trust. “Passive income” for tax purposes includes any income in which there is no effort or active management, and is treated differently for some purposes, such as Social Security income limitations. It may include stock dividends, trust profits, rents with no management involvement and interest on bank accounts.
A legal monopoly, granted by the U.S. Patent and Trademark Office (PTO), for the use, manufacture and sale of an invention. Patents on useful devices, called utility patents, last for 20 years from the date the patent application was filed. Design patents last for 14 years from the date issued. And plant patents last for 17 years from the date issued.
n. an obvious inconsistency in the language of a written document.
Patent and Trademark Office (PTO)
An administrative branch of the U.S. Department of Commerce charged with overseeing and implementing the federal laws of patent and trademark.This agency is responsible for examining and issuing all patents and trademarks in the country.
A statement included in a patent application that describes the structure of an invention in precise and exact terms, using a long established formal style and precise terminology. Patent claims serve as a way for the U.S. Patent and Trademark Office (PTO) to determine whether an invention is patentable, and as a way for a court to determine whether a patent has been infringed. In concept, a patent claim marks the boundaries of the patent in the same way as the legal description in a deed specifies the boundaries of the property.
The official document sent to an inventor by the Patent and Trademark Office (PTO) when that office has issued a patent for the inventor’s creation.
n. an obvious flaw in a product or a document (such as leaving out the property description in a deed).
Visual representations of an invention that are included in a patent application. Patent drawings must be included in the application unless the nature of the invention precludes such them, as would be the case with the formula for a new substance. Patent drawings should show all the features of the invention described in the application, including those features that distinguish it from prior art.
n. the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. The infringing party will be liable to the owner of the patent for all profits made from the use of the invention, as well as any harm which can be shown by the inventor, whether the infringement was intentional or not.
n. often abbreviated to “pat. pend.” or “pat. pending,” the term is printed on a product to inform others that an application for a patent has been filed with the Patent Office, but the patent has not yet been granted. The status of an invention between the time when: a utility patent application has been filed and when it is issued or rejected, or a provisional patent application has been submitted and when a subsequent patent application (filed within one year) is issued or rejected. Inventors often mark their devices “patent pending” to deter competitors from copying the idea or claim it as their own.
A search for documents that will determine whether a particular invention was novel and nonobvious when it was invented, and hence whether it may qualify for a patent. A patent search usually begins with a database of previously issued patents, and also covers other types of documents, such as journal articles and scientific papers, that describe unpatented inventions.
A lawsuit to determine the identity of the father of a child born outside of marriage, and to provide for the support of the child once the identity of the father has been determined.
v. to pledge an item of personal property as security for a loan, with the property left with the pawnbroker. The interest rates are on the high side, the amount of the loan is well below the value of the pledged property, and the broker has the right to sell the item without further notice if the loan is not paid. Pawnbrokers are licensed by the state.
v. to deliver money owed.
Pay-on-death (POD) designation
A way to avoid probate for bank accounts, government bonds, individual retirement accounts and, in many states, securities or a car. To create a pay-on-death designation, you simply name someone on the ownership document (such as the registration card for a bank account) to inherit the property at your death. You retain complete control of your property while you are alive, and you can change the beneficiary (payee) at any time. At your death, the property is transferred directly to the beneficiary, free of probate.
1) adj. referring to a debt which is due. A debt may be owed, but not yet payable until a certain date or event. 2) n. a debt which is due. “Payables” are all the liabilities (debts) of a business.
Payable on demand
adj. a debt on a promissory note or bill of exchange which must be paid when demanded by the payee (party to whom the debt is owed).
n. the one named on a check or promissory note to receive payment.
Payment in due course
n. the giving of funds to the holder of a promissory note or bill of exchange when due, without any knowledge that the document had been acquired by fraud or that the holder did not have valid title. The true owner of the bill or note cannot also demand payment, but must look to the recipient of the funds.
Payment in full
n. the giving of all funds due to another. This language is often inserted on the back of a check above the place for endorsement to prove that the payee accepts the payment as complete.
n. the party who must make payment on a promissory note.
n. a bond required as part of a court order to guarantee that a person will stay away from another person he/she has threatened or bothered. The bond will be forfeit (given up) if the order is violated, but that is no consolation to a person injured, molested or murdered by the violator.
n. in real estate, holding property without any adverse claim to possession or title by another.
n. misappropriation of public (government) funds or property.
adj. relating to money, as in “pecuniary loss.”
n. an equal. A “jury of one’s peers,” to which criminal defendants are constitutionally entitled, means an impartial group of citizens from the judicial district (e.g. county) in which the defendant lives. It does not mean a jury ethnically, educationally, economically or sexually the same as the defendant, although in some jurisdictions attempts are made to meet those criteria.
n. an examination and evaluation of the performance of a professional or technician by a board or committee made up of people in the same occupation. This may arise in determining whether a person has been legitimately discharged, denied promotion or penalized by an employer, or is found to have failed to meet minimum standards of performance and is thus liable in a lawsuit claiming damages due to negligence.
adj. referring to criminality, as in defining “penal code” (the laws specifying crimes and punishment), or “penal institution” (a state prison or penitentiary confining convicted felons).
n. 1) in criminal law, a money fine or forfeiture of property ordered by the judge after conviction for a crime. 2) an amount agreed in advance if payment or performance is not made on time, such as a “late payment” on a promissory note or lease, or a financial penalty for each day a building contractor fails to complete a job.
n. in federal procedure, the policy that allows a federal court to decide a legal question normally tried in state courts because it is based on the same facts as a lawsuit which is under federal court jurisdiction. (It also may be spelled: pendant
Latin for “while the action is pending.” This phrase is used to describe matters that are contingent upon the outcome of a lawsuit. For example, money may be deposited by the defendant with the court pendente lite in order to compensate the plaintiff if the defendant loses the case. If the defendant wins, she gets her money back.
A retirement fund for employees paid for or contributed to by some employers as part of a package of compensation for the employees’ work. Pensions became widespread during the Second World War, when they were commonly used as lures because there were more jobs than workers.
Pension Benefit Guaranty Corporation (PBGC)
A public, nonprofit insurance fund that provides some limited coverage against bankrupt pension funds. Should a pension fund be unable to pay all its obligations to its retirees, the PBGC may pay some of the pension fund’s unfulfilled obligations. The PBGC covers only defined benefit retirement plans and only vested benefits.
Latin for “by means of” or simply, “by” as in “per day” (by day) or “per capita” (by head).
Latin for “by head,” meaning to be determined by the number of people. To find the per capita cost, the total number of persons are added up and the bill, tax or benefits are divided equally among those persons.
Latin for “by the court,” defining a decision of an appeals court as a whole in which no judge is identified as the specif- ic author.
Latin for “per day,” it is short for payment of daily expenses and/or fees of an employee or an agent.
Latin for “by itself,” meaning inherently. Thus, a published writing which falsely accuses another of having a sexually transmitted disease or being a convicted felon is “libel per se,” without further explanation of the meaning of the statement.
Latin for “by roots,” by representation. The term is commonly used in wills and trusts to describe the distribution when a beneficiary dies before the person whose estate is being divided. Example: “I leave $100,000 to my daughter, Eleanor, and if she shall predecease me, to her children, per stirpes.” Thus, if Eleanor dies before her parent, then the $100,000 will be divided among her children equally. A way to make this more clear is to substitute for per stirpes: “…to her children, by right of representation, share and share alike,” which is clear to the non-lawyer. If there is no provision for distribution to children of a predeceased child, then the gift will become part of the residue (what is left after specific gifts), and then the grandchildren may not share if there are surviving children of the giver.
Peremption (of suit)
Putting an end to or precluding a right of actio, debate or delay
adj. absolute, final and not entitled to delay or reconsideration. The term is applied to writs, juror challenges or a date set for hearing.
During jury selection, an opportunity for a party to a lawsuit to dismiss or excuse a potential juror without having to give a valid reason, as would be the case when a juror is challenged for cause. Depending on court rules, each party typically gets to make from five to 15 peremptory challenges. Although parties may generally use their peremptory challenges as they see fit, the Constitution has been interpreted to prohibit their use to eliminate all jurors of a particular race or gender from a jury.
Peremptory writ of mandate
n. a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. This is distinguished from an alternative writ of mandate (mandamus), which orders the governmental agency, court or officials to obey the order or show cause at a hearing why it should not. The usual practice is for anyone desiring such an order to file a petition for the alternative writ. If the officials do not comply with the order and fail to convince the court that the writ of mandate should be denied, then the court will issue the peremptory writ. In some emergency situations or when there is no conceivable reason for the government not to follow the law, then the peremptory writ will be issued after a notice of hearing without the alternative writ.
1) to complete; to take all required steps to achieve a result, such as obtaining a lien or other security by legal action or completing and filing all documents to present a case to a court of appeals. A mechanic’s lien for labor and/or materials used to improve real property is “perfected” by filing a lawsuit and obtaining a judgment that the lien attaches to the property. 2) to make perfect.
adj. having completed all necessary legal steps to achieve a result, such as perfected title to property.
v. 1) to fulfill one’s obligations under a contract. 2) to comply with requirements of a court order.
n. fulfillment of one’s obligations required by contract. Specific performance of a contract may be demanded in a lawsuit. Partial performance is short of full performance spelled out in the contract, but if the contract provided for a series of acts or deliveries with payment for each of the series, there may be partial recovery for what has been performed or delivered even if there is not full performance.
n. a person who intentionally lies while under an oath administered by a notary public, court clerk or other official, and thus commits the crime of perjury. A perjurer may commit perjury in oral testimony or by signing or acknowledging a written legal document (such as an affidavit, declaration under penalty of perjury, deed, license application, tax return) knowing the document contains false information.
n. the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood.
n. an injury which impairs the physical and/or mental ability of a person to perform his/her normal work or non-occupational activities supposedly for the remainder of his/her life. Under worker’s compensation laws (covering on-the-job injuries) once the condition is stable, a degree of permanent disability is established even if the employee is able to work despite the physical problem. Permanent disability is also one basis for awarding general damages in a lawsuit for injury suffered due to the negligence or intentional attack of another.
n. a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed. A permanent injunction is distinguished from a “preliminary” injunction which the court issues pending the outcome of a lawsuit or petition asking for the “permanent” injunction.
n. physical or mental damage which will restrict the employment and/or other activities of a person for the rest of his/her life. In a lawsuit to recover damages caused by the negligence or intentional wrongful act of another, a permanent injury can be a major element in an award of general damages.
A non-citizen who has been given permission to make his or her permanent home in the country. As a permanent resident, you may travel as much as you like, but your place of residence must be kept on a permanent basis.
adj. 1) referring to any act which is allowed by court order, legal procedure, or agreement. 2) tolerant or allowing of others’ behavior, suggesting contrary to others’ standards.
1) v. to allow by silence, agreement or giving a license. 2) n. a license or other document given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts. These can include building a structure, using a building, driving on the highway, conducting a retail business, and dozens of other activities. The purpose of permits is supposedly to guarantee that laws and regulations have been obeyed, but they also are a source of public revenue.
n. 1) a human being. 2) a corporation treated as having the rights and obligations of a person. Counties and cities can be treated as a person in the same manner as a corporation. However, corporations, counties and cities cannot have the emotions of humans such as malice, and therefore are not liable for punitive damages unless there is a statute authorizing the award of punitive damages.
n. things which include clothes, cosmetics and items of adornment. This is not the same as “personalty” which means all tangible property which is not real property, money or investments. The expression is often found in wills (“I leave my personal effects to my niece, Susannah”).
An injury not to property, but to your body, mind or emotions. For example, if you slip and fall on a banana peel in the grocery store, personal injury covers any actual physical harm (broken leg and bruises) you suffered in the fall as well as the humiliation of falling in public, but not the harm of shattering your watch.
Personal injury recovery
The amount that comes from a lawsuit or insurance settlement to compensate someone for physical and mental suffering, including injury to body, injury to reputation or both.
All property other than land and buildings attached to land. Cars, bank accounts, wages, securities, a small business, furniture, insurance policies, jewelry, patents, pets and season baseball tickets are all examples of personal property. Personal property may also be called personal effects, movable property, goods and chattel, and personalty.
n. delivering a summons, complaint, notice to quit tenancy or other legal document which must be served by handing it directly to the person named in the document. Personal service is distinguished from “constructive service,” which includes posting the notice and then mailing a copy or publishing a summons on a person the court has found is hiding to avoid service, and from “substituted service,” which is giving the document to someone else (another resident, a secretary or receptionist, or other responsible adult) at the address.
n. in contract law, the talents of a person which are unusual, special or unique and cannot be performed exactly the same by another. These can include the talents of an artist, an actor, a writer or professional services. The value of personal services is greater than general labor, so woodcarving is personal service and carpentry is not. Therefore, if an actor contracts to perform in a movie and fails to show, he/she will be liable for damages based on the difficulty to replace him. An artist who contracts to paint a picture cannot send a substitute, since he/she was retained for his/her unique ability and product.
n. movable assets (things, including animals) which are not real property, money or investments.
n. old-fashioned name for the jury sitting to hear a lawsuit or criminal prosecution, called “petit” (small) to distinguish it from a “grand” jury, which has other duties.
A formal written request made to a court, asking for an order or ruling on a particular matter. For example, if you want to be appointed conservator for an elderly relative, you must file a petition with a court.
Someone who initiates an action requesting something; for example, someone who starts a lawsuit or petitions a higher court on appeal. In immigration law, a petitioner is a resident or business who makes a formal request that a foreign national be allowed to enter the country. The foreign national is called the “beneficiary.”
n. a term used in many states for theft of a small amount of money or objects of little value (such as less than $500). It is distinguished from grand larceny, which is theft of property of greater worth and a felony punishable by a term in state prison. Petty larceny is a misdemeanor with a maximum punishment of a term in the county jail. States which only use the term “larceny” often treat theft of smaller amounts as a misdemeanor in charging and sentencing.
The right and obligation of a parent to have his child live with him.
The inability of a spouse to engage in sexual intercourse with the other spouse. In some states, physical incapacity is a ground for an annulment or fault divorce, assuming the incapacity was not disclosed to the other spouse before the marriage.
n. the right and obligation of a physician to refuse to testify in a trial or other legal proceeding about any statement made to him/her by a patient on the basis that any communication between doctor and patient is confidential. A patient could sue the physician for damages if the doctor breaches the confidence by testifying. Of course, in most trials involving injuries the physician will testify with the plaintiff’s permission. Note: when the defendant’s physician examines the injured plaintiff, the plaintiff has given permission for that examination and potential testimony, so a plaintiff must be cautious in making statements.
n. standing or parading near a business or government office usually with signs of protest or claims in labor disputes or public policy controversies (peace marches to pro- or anti-abortion advocates). Picketing is constitutionally guaranteed as free speech, but in some cases it may be limited by court order to prevent physical combat, blocking of entrances or threats to the public safety.
Piercing the veil
A judicial doctrine that allows a plaintiff to hold otherwise immune corporate officers and directors personally liable for damages caused by a corporation under their control. The veil is pierced when officers have acted intentionally and illegally, or when their actions exceeded the power given them by the company’s articles of incorporation.
n. the crime of robbery of ships or boats on the oceans. Accusation, trial and punishment of pirates may be under international agreement applicable anywhere, or under the laws of the particular nation where the accused has been captured.
Passing off someone else’s work as your own, whether word for word or merely the creative ideas. This can amount to copyright infringement if permission has not been obtained from the copyright owner for use of the expressive elements of the work. Even if permission is granted, putting your name on someone else’s work is still plagiarism and is unethical within artistic, scientific, academic and political communities.
n. a mistake by the trial court found by a court of appeals to be very obvious and sufficient to require reversal of the trial decision.
Plain view doctrine
n. the rule that a law enforcement officer may make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Example: a policeman stops a motorist for a minor traffic violation and can see in the car a pistol or a marijuana plant on the back seat, giving him “reasonable cause” to enter the vehicle to make a search.
The person, corporation or other legal entity that initiates a lawsuit. In certain states and for some types of lawsuits, the term petitioner is used instead of plaintiff.
n. the attorney who represents a plaintiff (the suing party) in a lawsuit. In lawyer parlance a “plaintiff’s attorney” refers to a lawyer who regularly represents persons who are suing for damages, while a lawyer who is regularly chosen by an insurance company to represent its insureds is called a “defense attorney.”
A patent issued for new strains of asexually reproducing plants. Plant patents last for 17 years from the date the patent issues.
The defendant’s formal answer to criminal charges. Typically defendants enter one of the following pleas: guilty, not guilty or nolo contendere. A plea is usually entered when charges are formally brought (at arraignment).
A negotiation between the defense and prosecution (and sometimes the judge) that settles a criminal case. The defendant typically pleads guilty to a lesser crime (or fewer charges) than originally charged, in exchange for a guaranteed sentence that is shorter than what the defendant could face if convicted at trial. The prosecution gets the certainty of a conviction and a known sentence; the defendant avoids the risk of a higher sentence; and the judge gets to move on to other cases.
v. 1) in civil lawsuits and petitions, to file any document (pleading) including complaints, petitions, declarations, motions and memoranda of points and authorities. 2) in criminal law, to enter a plea of a defendant in response to each charge of criminal conduct.
A statement of the plaintiff’s case or the defendant’s defense, set out in generally accepted legal language and format. Today, in many states, the need to plead a case by drafting legal jargon — or borrowing from a legal form book — and printing it on numbered legal paper has been replaced by the use of pre-printed forms. In this case, creating a proper pleading consists principally of checking the correct boxes and filling in the requested information.
v. to deposit personal property as security for a personal loan of money. If the loan is not repaid when due, the personal property pledged shall be forfeit to the lender. The property is known as collateral. To pledge is the same as to pawn. 2) to promise to do something.
adj. full, complete, covering all matters, usually referring to an order, hearing or trial.
A strategy for avoiding a hostile takeover. A company offers low-price stock to its current shareholders in order to make it more expensive for another company to buy them out.
n. in some states a type of municipal court which handles misdemeanors (minor crimes) and traffic violations, as well as conducting arraignments (first appearances) and preliminary hearings of those accused of felonies to decide if there is cause to send the defendant to a higher court for trial. Police courts only handle criminal cases-unlike those municipal courts which also have jurisdiction over some civil cases.
n. the determination by a court (particularly the Supreme Court) that an issue raised about the conduct of public business is a “political” issue to be determined by the legislature (including Congress) or the executive branch and not by the courts. Since 1960 the U.S. Supreme Court has been willing to look at some questions previously considered “political,” such as “one-man-one-vote,” as constitutional issues.
n. a lie detector device, from Greek for “many” (poly) “message” (graph) since numerous physiological responses are tested when questions are answered.
n. statutory man-made law, as compared to “natural law,” which is purportedly based on universally accepted moral principles, “God’s law,” and/or derived from nature and reason.
Latin for “possible force,” the power of the sheriff to call upon any able- bodied adult men (and presumably women) in the county to assist him in apprehending a criminal. The assembled group is called a posse for short.
v. to own, have title to, occupy, physically hold or have under exclusive control. In wills there is often the phrase “of which I die possessed,” in describing the estate.
n. 1) any article, object, asset or property which one owns, occupies, holds or has under control. 2) the act of owning, occupying, holding or having under control an article, object, asset or property. “Constructive possession” involves property which is not immediately held, but which one has the right to hold and the means to get (such as a key to a storeroom or safe deposit box). “Criminal possession” is the holding of property which it is illegal to possess such as controlled narcotics, stolen goods or liquor by a juvenile. The old adage “possession is nine-tenths of the law” is a rule of force and not of law, since ownership requires the right to possess as well as actual or constructive possession.
Possession of stolen goods
n. the crime of possession of goods which one knows or which any reasonable person would realize were stolen. It is generally a felony. Innocent possession is not a crime, but the goods are generally returned to the legal owner.
n. in real estate, the intent and right of a person to occupy and/or exercise control over a particular plot of land. A possessory interest is distinguished from an interest in the title to property, which may not include the right to immediately occupy the property. Example: a long-term lease.
Possibility of a reverter
n. the potential that the title to a real property interest will return to the original grantor or giver or to his/her lineal descendants. Examples of events which could cause the title to revert: A gift of property to a hospital on condition that it be used forever for health care, but if the building is no longer used for that purpose the property will revert to the family of the original grantor; the real property is given to a daughter and her children, but will revert to her brother’s descendants if her line dies out without further issue.
v. 1) to place a notice on the entrance or a prominent place on real property, such as a notice to quit (leave), pay rent or of intent to conduct a sheriff’s sale, which requires mailing of a copy to the occupant to complete service of the notice. 2) to place a legal notice on a designated public place at the courthouse. 3) a commercial term for recording a payment. 4) to mail.
Latin phrase post hoc, ergo propter hoc, which means “after this, therefore because of this.” The phrase represents the faulty logic of assuming that one thing was caused by another merely because it followed that prior event in time.
Latin for “after death,” an examination of a dead body to determine cause of death, generally called an autopsy.
n. a check delivered now with a written date in the future, so that it cannot be cashed until that date. The danger to the recipient is that such a check is legally only a promissory note due at the later date, and if the account is closed or short when the check is presented at the bank, the payee has no rights to demand payment by the bank or claim that the delivery of a bad check was criminal.
A trust for children in which the trustee decides how to spend money on each child, taking money out of the trust to meet each child’s specific needs. One important advantage of a pot trust over separate trusts is that it allows the trustee to provide for one child’s unforeseen need, such as a medical emergency. But a pot trust can also make the trustee’s life difficult by requiring choices about disbursing funds to the various children. A pot trust ends when the youngest child reaches a certain age, usually 18 or 21.
A will that “pours over” property into a trust when the will maker dies. Property left through the will must go through probate before it goes into the trust.
n. the right, authority and ability to take some action or accomplish something, including demanding action, executing documents, contracting, taking title, transferring, exercising legal rights and many other acts.
Power of acceptance
n. the ability to accept an offer and thus create a binding contract. In real estate an acceptance can only be made for a period specified in the offer, and the power is terminated permanently by the making of a counter-offer. Thus, one cannot make a counter-offer and then decide to accept the original offer.
Power of appointment
The legal authority to decide who will receive someone else’s property, usually property held in a trust. Most trustees can distribute the income from a trust only according to the terms of the trust, but a trustee with a power of appointment can choose the beneficiaries, sometimes from a list of candidates specified by the grantor. For example, Karin creates a trust with power of appointment to benefit either the local art museum, symphony, library or park, depending on the trustee’s assessment of need.
Power of attorney
A document that gives another person legal authority to act on your behalf. If you create such a document, you are called the principal, and the person to whom you give this authority is called your attorney-in-fact. If you make a durable power of attorney, the document will continue in effect even if you become incapacitated.
adj. when something can be done or performed.
1) n. custom or habit as shown by repeated action, as in “it is the practice in the industry to confirm orders before shipping.” 2) n. the legal business, as in “law practice,” or “the practice of the law.” 3) v. to repeat an activity in order to maintain or improve skills, as “he practices the violin every evening.” 4) v. to conduct a law business, as “she practices law in St. Louis.”
v. to formally request judicial judgment, relief and/or damages at the end of a complaint or petition.
n. the specific request for judgment, relief and/or damages at the conclusion of a complaint or petition. A typical prayer would read: “The plaintiff prays for 1) special damages in the sum of $17,500; 2) general damages according to proof [proved in trial]; 3) reasonable attorney’s fees; 4) costs of suit; and 5) such other and further relief as the court shall deem proper.” A prayer gives the judge an idea of what is sought, and may become the basis of a judgment if the defendant defaults (fails to file an answer). Sometimes a plaintiff will inflate damages in the prayer for publicity or intimidation purposes, or because the plaintiff believes that a gigantic demand will be a better starting point in negotiations. However, the ridiculous multi-million prayers in smaller cases make plaintiffs look foolish and unrealistic.
Prayer for relief
What the plaintiff asks of the court — for example, the plaintiff may ask for an award of monetary damages, an injunction to make the defendant stop a certain activity, or both.
adj. referring to a wish or advisory suggestion which does not have the force of a demand or a request which under the law must be obeyed. Thus “precatory words” in a will or trust would express a “hope that my daughter will keep the house in the family,” but do not absolutely prevent her from selling it.
A legal principle or rule created by one or more decisions of a state or federal appellate court. These rules provide a point of reference or authority for judges deciding similar issues in later cases. Lower courts must apply these rules when faced with similar legal issues. For example, if the Montana Supreme Court decides that a certain type of employment contract overly restricts the right of the employee to quit and get another job, all other Montana courts must apply this same rule.
v. to die before someone else.
In the law of wills, a spouse who dies before the will maker while still married to him or her.
n. the rule of law that if the federal government through Congress has enacted legislation on a subject matter it shall be controlling over state laws and/or preclude the state from enacting laws on the same subject if Congress has specifically stated it has “occupied the field.” If Congress has not clearly claimed preemption, a federal or state court may decide the issue on the basis of history of the legislation (debate in Congress) and practice.
n. the right of a shareholder in a corporation to have the first opportunity to purchase a new issue of stock of that corporation in proportion to the amount of stock already owned by the shareholder.
A payment made by a debtor to a creditor within a defined period prior to filing for bankruptcy — within three months for arms-length creditors (regular commercial creditors) and within one year for insider creditors (friends, family members, and business associates). Because a preference gives the creditor who received the payment an edge over other creditors in the bankruptcy case, the trustee can recover the preference (the amount of the payment) and distribute it among all of the creditors.
n. a payment of a corporation’s profits to holders of preferred shares of stock.
n. a class of shares of stock in a corporation which gives the holders priority in payment of dividends (and distribution of assets in case of dissolution of the corporation) over owners of “common” stock at a fixed rate. While the assurance of first chance at profits is a psychological and real benefit, preferred stock shareholders do not participate in higher dividends if the corporation makes large profits, and usually cannot vote for directors.
n. in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable by a term in the state prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime. A preliminary hearing is held in the lowest local court (municipal or police court), but only if the prosecutor has filed the charge without asking the Grand Jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant’s right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court (variously called superior, county, district, common pleas) for trial. If there is no such convincing evidence, the judge will dismiss the charges. In the “Perry Mason” television series, the courtroom scenes were almost always of preliminary hearings.
n. a court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act which is in dispute, thereby maintaining the status quo until there is a final judgment after trial.
An agreement made by a couple before marriage that controls certain aspects of their relationship, usually the management and ownership of property, and sometimes whether alimony will be paid if the couple later divorces. Courts usually honor premarital agreements unless one person shows that the agreement was likely to promote divorce, was written with the intention of divorcing or was entered into unfairly. A premarital agreement may also be known as a “prenuptial agreement.”
n. planning, plotting or deliberating before doing something. Premeditation is an element in first degree murder and shows intent to commit that crime.
n. 1) in real estate, land and the improvements on it, a building, store, shop, apartment, or other designated structure. The exact premises may be important in determining if an outbuilding (shed, cabana, detached garage) is insured or whether a person accused of burglary has actually entered a structure. 2) in legal pleading, premises means “all that has hereinabove been stated,” as in a prayer (request) at the end of a complaint asking for “any further order deemed proper in the premises” (an order based on what has been stated in the complaint).
n. 1) payment for insurance coverage either in a lump sum or by installments. 2) an extra payment for an act, option or priority.
See premarital agreement.
Preponderance of the evidence
n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.
n. an historic generic term for any writ (court order) directed to government agencies, public officials or another court.
n. the method of acquiring an easement upon another’s real property by continued and regular use without permission of the property owner for a period of years required by the law of the state (commonly five years or more). Examples: Phillip Packer drives across the corner of Ralph Roundup’s ranch to reach Packer’s barn regularly for a period of ten years; for a decade Ronald Retailer uses the alley behind Marjorie Howard’s house to reach his storeroom. In each case the result is a “prescriptive easement” for that specific use. It effectively gives the user an easement for use but not ownership of the property.
n. an easement upon another’s real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
n. 1) making a demand for payment of a promissory note when it is due. 2) a report to a court by a Grand Jury, made on its own initiative without a request or presentation of evidence by the local prosecutor, that a “public” crime (illegal act by public officials or affecting the public good) has been committed.
n. 1) in both state and federal appeals court, the judge who chairs the panel of three or more judges during hearings and supervises the business of the court. 2) in those counties or other jurisdictions with several judges, the one is chosen to direct the management of the courts, usually on an annual or other rotating basis. The presiding judge usually makes assignments of judges to specialized courts (juvenile, probate, criminal, law and motion, family law, etc.), oversees the calendar, and chairs meetings of the judges.
In a bankruptcy, when the debtor’s current monthly income exceeds the family median income for his or her state and he or she cannot pass the means test, the court will presume that the debtor has sufficient income to fund a plan. In this situation, the debtor will not be allowed to proceed with a bankruptcy unless the debtor can prove that he or she is not abusing the bankruptcy remedy.
n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof it is not; a person who has disappeared and not been heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.
Presumption of innocence
One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each element of the crime charged.
A child or spouse who is not mentioned in a will and whom the court believes was accidentally overlooked by the person who made the will. For example, a child born or adopted after the will is made may be deemed a pretermitted heir. If the court determines that an heir was accidentally omitted, that heir is entitled to receive the same share of the estate as she would have if the deceased had died without a will. A pretermitted heir is sometimes called an “omitted heir.”
n. the winner in a lawsuit. Many contracts, leases, mortgages, deeds of trust or promissory notes provide that the “prevailing party” shall be entitled to recovery of attorney’s fees and costs if legal action must be taken to enforce the agreement. Even if the plaintiff gets much less than the claim, he/she/it is the prevailing party entitled to include attorney’s fees in the collectable costs. Usually there is no prevailing party when a complaint is voluntarily dismissed prior to trial or settled before or after trial has begun.
n. a criminal violation of federal antitrust statutes in which several competing businesses reach a secret agreement (conspiracy) to set prices for their products to prevent real competition and keep the public from benefitting from price competition. Price fixing also includes secret setting of favorable prices between suppliers and favored manufacturers or distributors to beat the competition.
Latin for “on its face.” A prima facie case is one that at first glance presents sufficient evidence for the plaintiff to win. Such a case must be refuted in some way by the defendant for him to have a chance of prevailing at trial. For example, if you can show that someone intentionally touched you in a harmful or offensive way and caused some injury to you, you have established a prima facie case of battery. However, this does not mean that you automatically win your case. The defendant would win if he could show that you consented to the harmful or offensive touching.
Prima facie case
n. a plaintiff’s lawsuit or a criminal charge which appears at first blush to be “open and shut.”
n. the one person law enforcement officers believe most probably committed a crime being investigated. Once a person is determined to be a prime suspect, the police must be careful to give the “Miranda warnings,” or take the risk that any admissions (any evidence gained from the statements) by the suspect may be excluded in trial.
n. from Latin for “first born,” the ancient rule from feudal England (except in the County of Kent) that the oldest son would inherit the entire estate of his parents (or nearest ancestor), and, if there was no male heir, the daughters would take (receive the property) in equal shares. The intent was to preserve larger properties from being broken up into small holdings, which might weaken the power of nobles.
1) When creating a power of attorney or other legal document, the person who appoints an attorney-in-fact or agent to act on his or her behalf. 2) In criminal law, the main perpetrator of a crime. 3) In commercial law, the total amount of a loan, not including any capitalized fees or interest. 4) In the law of trusts, the property of the trust, as opposed to the income generated by that property. The principal is also known as the trust corpus; that’s Latin for “body.” For example, Arthur establishes a new trust with $100,000, with interest and other income payable to Merlin; the $100,000 is the trust principal or corpus.
Principal place of business
n. location of head office of a business where the books and records are kept and/or management works.
The list on which distinctive trademarks and service marks approved for federal regulation are placed. The benefits of getting a mark placed on the principal register include the notice to potential copiers that your mark is protected, the right to sue to stop copying, and the right to have the mark considered immune from legal challenge after five years. Registration also means that an infringer will be considered a willful infringer in case of an infringement lawsuit, which makes it a lot easier to collect large damages and possibly attorney fees.
All previous inventions in the field of an invention for which a patent is being sought. Prior art is used by the Patent and TM Office to decide whether the invention is sufficiently unique and non-intuitive to qualify for patent protection.
n. an attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press (even in the guise of an anti-nuisance ordinance). Stemming from the First Amendment to the Constitution, the ban on prior restraint allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered (false claim of poison in the reservoir or exhortation to commit a crime like a lynching) and some forms of pornography. The theory, articulated by the U.S. Supreme Court in Near v. Minnesota (1931) is that free speech and free press protections have priority, and lawsuits for libel and slander and prosecutions for criminal advocacy will curb the effect of defamation and untruths. Most other nations permit prior restraint by court order or police action when the material appears to be defamatory (hurtful lies), salacious (nasty), or “improper, mischievous, or illegal” (in the words of Sir William Blackstone).
n. the right to be first or ahead of the rights or claims of others. In bankruptcy law, the right to collect before other creditors is given to taxing authorities, judgment holders, secured creditors, bankruptcy trustees and attorneys. The right also can apply to mortgages, deeds of trusts or liens given priority in the order they were recorded (in the “race to the courthouse”).
A type of debt that is paid first if there are distributions made from the bankruptcy estate, and must be paid in full. Priority debts include alimony and child support, fees owed to the trustee and the attorney in the bankruptcy case, and wages owed to employees.
n. the right to be free of unnecessary public scrutiny or to be let alone. Once a person is a “public figure” or involved in newsworthy events, the right to privacy may evaporate.
n. one who provides transportation or delivery of goods for money, just for the particular instance, and not as a regular business. It is distinguished from a “common carrier” which is in the business, such as buses, railroads, trucking companies, airlines and taxis. However, a private carrier may be liable for injuries to anyone who pays or shares the cost of transport.
Private mortgage insurance (PMI)
Insurance that reimburses a mortgage lender if the buyer defaults on the loan and the foreclosure sale price is less than the amount owed the lender (the mortgage plus the costs of the sale). A home buyer who makes less than a 20% down payment may have to purchase PMI.
n. the interference with an individual’s peaceful enjoyment of one’s property, which can be the basis for a lawsuit both for damages caused by the nuisance and an order (injunction) against continuing the noxious (offensive) activity or condition.
n. land not owned by the government or dedicated to public use.
n. a road or driveway on privately owned property, limited to the use of the owner or a group of owners who share the use and maintain the road without help from a government agency. A private road has not been given to a government entity (like a county or city) and accepted by that entity for public use. Some private roads are used by the public, but should be closed off at least once a year to prove that an easement of use is not allowed and to prevent a prescriptive easement (taken by continued use) from arising.
n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.
Privilege against self incrimination
n. a right to refuse to testify against oneself in a criminal prosecution or in any legal proceeding which might be used against the person.
n. statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court. These include communications between husband and wife, attorney and client, physician or therapist and patient, and minister or priest with anyone seeing them in their religious status. In some states the privilege is extended to reporters and informants. Thus, such people cannot be forced to testify or reveal the conversations to law enforcement or courts, even under threat of contempt of court, and if one should break the confidentiality he/she can be sued by the person who had confidence in him/her. The reason for the privilege is to allow people to speak with candor to spouse or professional counsellor, even though it may hinder a criminal prosecution. The extreme case is when a priest hears an admission of murder or other serious crime in the confessional and can do nothing about it. The privilege may be lost if the one who made the admission waives the privilege, or, in the case of an attorney, if the client sues the attorney claiming negligence in conduct of the case.
Privileges and immunities
n. the fundamental rights that people enjoy in free governments.
n. contact, connection or mutual interest between parties. The term is particularly important in the law of contracts, which requires that there be “privity” if one party to a contract can enforce the contract by a lawsuit against the other party. Thus, a tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the land sales contract between seller and buyer since the tenant was not “in privity” with the seller.
Latin for “for the public good,” legal work performed by lawyers without pay to help people with legal problems and limited or no funds, or provide legal assistance to organizations involved in social causes such as environmental, consumer, minority, youth, battered women and education organizations and charities.
Latin for “as a matter of form,” the phrase refers to court rulings merely intended to facilitate the legal process (to move matters along).
n. an accountant’s proposed financial statement for a business based on the assumption that certain events occurred, such as a 20% increase in annual sales or 6% inflation.
Pro hac vice
Latin meaning “for this one particular occasion.” The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried.
A term derived from the Latin in propria, meaning “for one’s self,” used in some states to describe a person who handles her own case without a lawyer. In other states, the term pro se is used. When a nonlawyer files his own legal papers, he is expected to write “in pro per” at the bottom of the heading on the first page.
Latin for “in proportion,” referring to a share to be received or an amount to be paid based on the fractional share of ownership, responsibility or time used. Examples: an heir who receives one-quarter of an estate may be responsible for one-quarter of the estate taxes as his/her pro rata share. A buyer of a rental property will pay his/her pro rata share of the property taxes for that portion of the year in which he/she holds title.
Latin phrase meaning “for himself” or “in one’s own behalf.” This term denotes a person who represents herself in court. It is used in some states in place of “in pro per” and has the same meaning.
Latin for “only to that extent.” Example: a judge gives an order for payments for one year, pro tanto.
Latin pro tempore, temporarily or for the time being. In law, judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as a substitute for a regular judge.
The amount and quality of information police must have before they can arrest or search without a warrant or that a judge must have before she will sign a search warrant allowing the police to conduct a search or arrest a suspect. Reliable information must show that it’s more likely than not that a crime has occurred and the suspect is involved.
The court process following a person’s death that includes: proving the authenticity of the deceased person’s will; appointing someone to handle the deceased person’s affairs; identifying and inventorying the deceased person’s property; paying debts and taxes; identifying heirs, and distributing the deceased person’s property according to the will or, if there is no will, according to state law. Formal court-supervised probate is a costly, time-consuming process — a windfall for lawyers — which is best avoided if possible.
A specialized court or division of a state trial court that considers only cases concerning the distribution of deceased persons’ estate. Called “surrogate court” in New York and several other states, this court normally examines the authenticity of a will — or if a person dies intestate, figures out who receives her property under state law. It then oversees a procedure to pay the deceased person’s debts and to distribute her assets to the proper inheritors.
n. a chance to remain free (or serve only a short time) given by a judge to a person convicted of a crime instead of being sent to jail or prison, provided the person can be good. Probation is only given under specific court-ordered terms, such as performing public service work, staying away from liquor, paying a fine, maintaining good behavior, getting mental therapy and reporting regularly to a probation officer. Violation of probation terms will usually result in the person being sent to jail for the normal term. Repeat criminals are normally not eligible for probation. Probation is not the same as “parole,” which is freedom under certain restrictions given to convicts at the end of their imprisonment.
adj. in evidence law, tending to prove something. Thus, testimony which is not probative (does not prove anything) is immaterial and not admissible or will be stricken from the record if objected to by opposing counsel.
n. evidence which tends to prove something which is relative to the issues in a lawsuit or criminal prosecution.
n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed by the trial judge against prejudicing in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, balanced against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions.
n. the methods and mechanics of the legal process. These include filing complaints, answers and demurrers; serving documents on the opposition; setting hearings, depositions, motions, petitions, interrogatories; preparing orders; giving notice to the other parties; conduct of trials; and all the rules and laws governing that process. Every state has a set of procedural statutes (often called the Codes of Civil Procedure and Criminal Procedure), and courts have so-called “local rules,” which govern times for filing documents, conduct of the courts and other technicalities. Law practice before the federal courts operates under the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. Procedural law is distinguished from “substantive” law, which involves the statutes and legal precedents upon which cases are tried and judgments made.
n. any legal filing, hearing, trial and/or judgment in the ongoing conduct of a lawsuit or criminal prosecution. Collectively they are called “proceedings,” as in “legal proceedings.”
Proceeds for damaged exempt property
In a bankruptcy proceeding, money collected through insurance, arbitration, mediation, settlement or a lawsuit to pay for exempt property that’s no longer exemptible because it has been damaged or destroyed.
n. in law, the legal means by which a person is required to appear in court or a defendant is given notice of a legal action against him/her/it. When a complaint in a lawsuit is filed, it must be served on each defendant, together with a summons issued by the clerk of the court stating the amount of time (say, 30 days) in which the defendant has to file an answer or other legal pleading with the clerk of the court, and sent to the plaintiff. New York has an unusual system in which a summons may be served without a complaint. A subpena is similar to a summons but is a notice to a witness to appear at a deposition (testimony taken outside court), or at a trial. A subpena duces tecum is an order to deliver documents or other evidence either into court or to the attorney for a party to a lawsuit or criminal prosecution. An order to show cause is a court order to appear in court and give a reason why the court should not issue an order (such as paying temporary child support). The summons, complaint, subpena, subpena duces tecum and order to show cause must all be “served” on the defendant or person required to appear or produce, and this is called “service of process.” Service of process is usually made by an officer of the court such as a deputy sheriff or marshal, or a professional process server, but can be performed by others in most jurisdictions.
n. a person who serves (delivers) legal papers in lawsuits, either as a profession or as a government official, such as a deputy sheriff, marshal or constable.
n. 1) in admiralty (maritime) law, an attorney. 2) person who keeps order.
n. the responsibility of manufacturers, distributors and sellers of products to the public, to deliver products free of defects which harm an individual or numerous persons and to make good on that responsibility if their products are defective. These can include faulty auto brakes, contaminated baby food, exploding bottles of beer, flammable children’s pajamas or lack of label warnings. The key element in product liability law is that a person who suffers harm need prove only the failure of the product to make the seller, distributor and/or manufacturer reliable for damages. An injured person usually need only sue the seller and let him/her/it bring the manufacturer or distributor into the lawsuit or require contribution toward a judgment. However, all those possibly responsible should be named in the suit as defendants if they are known.
A legal structure authorized by state law for a fairly narrow list of licensed professions, including lawyers, doctors, accountants, many types of higher-level health providers and often architects. Unlike a regular corporation, a professional corporation does not absolve a professional for personal liability for her own negligence or malpractice. The main reason why groups of professions choose this organizational structure is that, unlike a general partnership, owners are not personally liable for the malpractice of other owners. In some states, limited liability partnerships offer this same benefit and may be more desirable for other reasons.
v. to offer evidence in a trial.
n. forbidding an act or activity. A court order forbidding an act is a writ of prohibition, an injunction or a writ of mandate (mandamus) if against a public official.
1) n. a firm agreement to perform an act, refrain from acting or make a payment or delivery. In contract law, if the parties exchange promises, each promise is “consideration” (a valuable item) for the other promise. Failure to fulfill a promise in a contract is a breach of the contract, for which the other party may sue for performance and/or damages. 2) v. to make a firm agreement to act, refrain from acting or make a payment or delivery.
n. a false statement treated as a promise by a court when the listener had relied on what was told to him/her to his/her disadvantage. In order to see that justice is done a judge will preclude the maker of the statement from denying it. Thus, the legal inability of the person who made the false statement to deny it makes it an enforceable promise called “promissory estoppel,” or an “equitable estoppel.”
n. a written promise by a person (variously called maker, obligor, payor, promisor) to pay a specific amount of money (called “principal”) to another (payee, obligee, promisee), usually to include a specified amount of interest on the unpaid principal amount (what he/she owes). The specified time of payment may be written as: a) whenever there is a demand, b) on a specific date, c) in installments with or without the interest included in each installment, d) installments with a final larger amount (balloon payment). A promissory note may contain other terms such as the right of the promisee to order payment be made to another person, penalties for late payments, a provision for attorney’s fees and costs if there is a legal action to collect, the right to collect payment in full if the note is secured by real property and the property is sold (“due on sale” clause), and whether the note is secured by a mortgage or deed of trust or a financing statement (a filed security agreement for personal collateral called UCC-1). The promissory note is usually held by the party to whom the money is owed. There are legal limitations to the amount of interest which may be charged. Charging a rate in excess of the legal limit is called “usury,” and this excess is legally uncollectible. When the amount due on the note, including interest and penalties (if any), is paid, the note must be cancelled and surrendered to the person(s) who signed it. A promissory note need only be signed and does not require an acknowledgement before a notary public to be valid.
n. a person who puts together a business, particularly a corporation, including the financing. Usually the promoter is the principal shareholder or one of the management team and has a contract with the incorporators or makes a claim for shares of stock for his/her efforts in organization. Most states limit the amount of “promotional stock” since it is supported only by effort and not by assets or cash.
n. stock issued in a newly formed corporation and given to a promoter (organizer) of the corporation in payment for his/her efforts in putting the company together and locating shareholders or other funding. Most states (and the federal Securities and Exchange Act) limit promotional stock to an amount reasonable for the effort since it is not backed by assets or money.
n. confirmation of a fact by evidence. In a trial, proof is what the trier of the fact (jury or judge without a jury) needs to become satisfied that there is “a preponderance of the evidence” in civil (non-criminal) cases and the defendant is guilty “beyond a reasonable doubt” in criminal prosecutions. However, each alleged fact must be proved separately, as must all the facts necessary to reach a judgment for the plaintiff (the person filing a lawsuit) or for the prosecution (the “people” or “state” represented by the prosecutor). The defendants in both civil suits and criminal trials need not provide absolute “proof” of non-responsibility in a civil case or innocence (in a criminal case), since the burden is on the plaintiff or prosecution to prove their cases (or prove the person guilty).
n. a person or entity who has an interest (financial or protection of some legal rights) in the subject matter of a lawsuit and, therefore, can join in the lawsuit as he/she/it wishes, or may be brought into the suit (as an unnecessary party) by one of the parties to the legal action. However, the judgment may leave some matters undecided. A proper party is distinguished from a “necessary party,” which the court will order joined in (brought into) the suit if any judgment is to be reached.
n. anything that is owned by a person or entity. Property is divided into two types: “real property,” which is any interest in land, real estate, growing plants or the improvements on it, and “personal property” (sometimes called “personalty”), which is everything else. “Common property” is ownership by more than one person of the same possession. “Community property” is a form of joint ownership between husband and wife recognized in several states. “Separate property” is property owned by one spouse only in a community property state, or a married woman’s sole ownership in some states. “Public property” refers to ownership by a governmental body such as the federal, state, county or city governments or their agencies (e.g. school or redevelopment districts). The government and the courts are obligated to protect property rights and to help clarify ownership.
Property control trust
Any trust that imposes limits or controls over the rights of trust beneficiaries. These trusts include (1) special needs trusts designed to assist people who have special physical, emotional or other requirements, (2) spendthrift trusts designed to prevent a beneficiary from wasting the trust principal; and (3) sprinkling trusts that allow the trustee to decide how to distribute trust income or principal among the beneficiaries
n. injury to real or personal property through another’s negligence, willful destruction or by some act of nature. In lawsuits for damages caused by negligence or a willful act, property damage is distinguished from personal injury. Property damage may include harm to an automobile, a fence, a tree, a home or any other possession. The amount of recovery for property damage may be established by evidence of replacement value, cost of repairs, loss of use until repaired or replaced or, in the case of heirlooms or very personal items (e.g. wedding pictures), by subjective testimony as to sentimental value.
n. an annual governmental tax on real property or personal property based on a tax rate (so many dollars or cents per $100 value of the property). The value is usually established by an Assessor, a county official. In California the assessed value of real property is based on the amount of the last sale of the property, and the tax is limited to 1% of that figure (with a few minor exceptions) under the so-called “Proposition 13″ state constitutional provision. In addition, there are special assessments for particular public property improvements such as sidewalks, tree planting, or storm drains which are charged to each property owner on the street in which the improvements are made.
Latin, for oneself.
adj. referring to ownership.
n. a total or partial ownership.
n. those rights which go with ownership of real property or a business.
n. the owner of anything, but particularly the owner of a business operated by that individual.
When a local District Attorney, state Attorney General or federal Attorney brings a criminal case against a defendant.
n. 1) in criminal law, the government attorney charging and trying the case against a person accused of a crime. 2) a common term for the government’s side in a criminal case, as in “the prosecution will present five witnesses” or “the prosecution rests” (has completed its case).
A lawyer who works for the local, state or federal government to bring and litigate criminal cases.
n. a detailed statement by a corporation required when there is an issuance of stock to the general public. A prospectus includes the financial status, the officers, the plans, contingent obligations (such as lawsuits) of the corporation, recent performance and other matters which would assist the potential investor or investment adviser to evaluate the stock and the prospects of the company for profit, loss or growth. The Federal Securities Act requires the filing of the prospectus with the Securities and Exchange Commission and the SEC’s approval before any major stock issue. State laws generally require similar documentation for some issuances or offers of sales of stock within the state. Every potential purchaser of shares of a new stock shares must receive a copy of the prospectus, even though they are difficult to understand. Offerings to the public of limited partnership interests may require that a prospectus be prepared and delivered to each investor.
n. the act of law enforcement officials in placing a person in a government facility or foster home in order to protect him/her from a dangerous person or situation. Most commonly a child who has been neglected or battered or is in danger from a violent person is taken in as a temporary ward of the state and held in probation facilities or placed in a foster home until a court can decide the future placement of the child. Protective custody is sometimes used to help women threatened by a husband, boyfriend or a stalker, and also for witnesses who have been threatened with physical harm or death if they testify.
1) v. to complain in some public way about any act already done or about to be done, such as adoption of a regulation by a county board, sending troops overseas, or use of the death penalty. 2) v. to dispute the amount of property taxes, the assessed evaluation of property for tax purposes or an import duty. 3) n. a written demand for payment of the amount owed on a promissory note which has not been paid when due or a check which has been dishonored (not paid by the bank).
v. to present evidence and/or logic that makes a fact seem certain. A party must do this to convince a trier of fact (jury or judge sitting without a jury) as to facts claimed and to win a lawsuit or criminal case.
Proving a will
Convincing a probate court that a document is truly the deceased person’s will. Usually this is a simple formality that the executor or administrator easily satisfies by showing that the will was signed and dated by the deceased person in front of two or more witnesses. When the will is holographic — that is, completely handwritten by the deceased and not witnessed, it is still valid in many states if the executor can produce relatives and friends to testify that the handwriting is that of the deceased.
Provisional patent application (PPA)
The provisional patent application is a simple, inexpensive strategy to preserve your rights while you decide whether to file for a regular patent. It establishes an official U.S. patent application filing date for the invention and is much less expensive, and much easier to prepare, than a regular patent application.
n. a generic term for any temporary order of a court to protect a party from irreparable damage while a lawsuit or petition is pending.
n. a term or condition in a contract or title document.
The act of inciting another person to do a particular thing. In a fault divorce, provocation may constitute a defense to the divorce, preventing it from going through. For example, if a wife suing for divorce claims that her husband abandoned her, the husband might defend the suit on the grounds that she provoked the abandonment by driving him out of the house.
n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the defendant’s act must have been the proximate cause of the death of a victim to prove murder or manslaughter.
n. 1) someone who is authorized to serve in one’s place at a meeting, particularly with the right to cast votes. 2) the written authority given to someone to act or vote in someone’s place. A proxy is commonly given to cast a stockholder’s votes at a meeting of shareholders, and by board members and convention delegates.
Prudent man rule
n. the requirement that a trustee, investment manager of pension funds, treasurer of a city or county, or any fiduciary (a trusted agent) must only invest funds entrusted to him/her as would a person of prudence, i.e. with discretion, care and intelligence. Thus solid “blue chip” securities, secured loans, federally guaranteed mortgages, treasury certificates and other conservative investments providing a reasonable return are within the prudent man rule. Some states have statutes which list the types of investments allowable under the rule. Unfortunately, the rule is subjective, and some financial managers have put funds into speculative investments to achieve higher rates of return, which has resulted in bankruptcy and disaster.
1) n. the people of the nation, state, county, district or municipality which the government serves. 2) adj. referring to any agency, interest, property, or activity which is under the authority of the government or which belongs to the people. This distinguishes public from private interests as with public and private schools, public and private utilities, public and private hospitals, public and private lands and public and private roads.
Someone appointed by a probate court to oversee probate proceedings when a person dies without a will or heirs, and his or her property is expected to pass to the state. Some states have public administrators who are responsible for temporarily preserving the assets of an estate if there are disputes about specific provisions in the will or about who will be appointed the regular administrator.
Public benefit corporation
n. a term used in some states for a nonprofit community service corporation. Typical examples are clubs like Kiwanis, Rotary, soroptimists and Lions.
n. a general term for an indigent, sick or severely handicapped person who must be taken care of at public expense.
n. a corporation created to perform a governmental function or to operate under government control, such as a municipal water company or hospital.
A lawyer appointed by the court and paid by the county, state, or federal government to represent clients who are charged with violations of criminal law and are unable to pay for their own defense.
A creative work, invention or logo that is available for use without permission from its owner. This typically occurs after patent, trademark or copyright protection has expired.
n. the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property down to the ocean. Beach access has been the source of controversy between government and private owners in many seaboard states.
n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).
n. a nuisance which affects numerous members of the public or the public at large (how many people it takes to make a public is unknown), as distinguished from a nuisance which only does harm to a neighbor or a few private individuals.
n. property owned by the government or one of its agencies, divisions, or entities. Commonly a reference to parks, playgrounds, streets, sidewalks, schools, libraries and other property regularly used by the general public.
n. any information, minutes, files, accounts or other records which a governmental body is required to maintain and which must be accessible to scrutiny by the public. This includes the files of most legal actions. A court will take “judicial notice” of a public record (including hearsay in the record) introduced as evidence. For example: a recorded deed to show transfer of title or a criminal judgment are both public records.
Public trust doctrine
n. the principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest. Nevertheless, there has been a great deal of use for offshore oil drilling, for landfill, and marine shoreline development, in which protection of the public interest has been dubious at best.
n. the only purpose for which private property can be taken (condemned) by the government under its power of eminent domain. Public use includes: schools, streets, highways, hospitals, government buildings, parks, water reservoirs, flood control, slum clearance and redevelopment, public housing, public theaters and stadiums, safety facilities, harbors, bridges, railroads, airports, terminals, prisons, jails, public utilities, canals, and numerous other purposes designated as beneficial to the public.
n. any organization which provides services to the general public, although it may be privately owned. Public utilities include electric, gas, telephone, water and television cable systems, as well as streetcar and bus lines. They are allowed certain monopoly rights due to the practical need to service entire geographic areas with one system, but they are regulated by state, county and/or city public utility commissions under state laws.
n. 1) anything made public by print (as in a news- paper, magazine, pamphlet, letter, telegram, computer modem or program, poster, brochure or pamphlet), orally, or by broadcast (radio, television). 2) placing a legal notice in an approved newspaper of general publication in the county or district in which the law requires such notice to be published. 3) in the law of defamation (libel and slander) publication of an untruth about another to at least one single person. Thus one letter can be the basis of a suit for libel, and telling one person is sufficient to show publication of slander.
v. to make public to at least one other person by any means.
An original work of authorship that is considered published for purposes of copyright law. A work is “published” when it is first made available to the public on an unrestricted basis. It is thus possible to display a work, or distribute it with restrictions on disclosure of its contents, without actually “publishing” it. Both published and unpublished works are entitled to copyright protection, but some of the rules differ.
n. the exaggeration of the good points of a product, a business, real property and the prospects for future rise in value, profits and growth. Since a certain amount of “puffing” can be expected of any salesman, it cannot be the basis of a lawsuit for fraud or breach of contract unless the exaggeration exceeds the reality. However, if the puffery includes outright lies or has no basis in fact (“Sears Roebuck is building next door to your store site”) a legal action for rescission of the contract or for fraud against the seller is possible.
Damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.
adj. commonly believed, supposed or claimed. Thus a putative father is one believed to be the father unless proved otherwise, a putative marriage is one that is accepted as legal when in reality it was not lawful (e.g. due to failure to complete a prior divorce). A putative will is one that appears to be the final will but a later will is found that revokes it and shows that the putative will was not the last will of the deceased.